The Pennsylvania Supreme Court today (November 20) agreed to hear the appeal of the Superior Court’s decision in Briggs v. Southwestern Energy Production, which called into question application of the longstanding principle of rule of capture to hydraulic fracturing. PIOGA is encouraged not only that the Supreme Court has agreed to consider this important appeal but also by the way the Court has framed the question that it will decide.

In Briggs, a Susquehanna County family alleged that from an adjoining leased property Southwestern Energy unlawfully extracted natural gas beneath their unleased 11-acre parcel. A common pleas court judge granted summary judgment to Southwestern based on Pennsylvania law, but a two-judge Superior Court panel reversed the decision and remanded the case to the lower court to determine if the company committed trespass by producing natural gas after hydraulically fracturing its shale wells. While Southwestern’ s defense relied on the well-established rule of capture — essentially, that by bringing the gas to the surface, the owner of a tract of land acquires title to the oil and gas produced from wells drilled on that land, including any oil and gas that may migrate from adjoining lands — a two-judge Superior Court panel held in an April 2 decision that the rule was inapplicable to gas obtained as a result of hydraulic fracturing.

Southwestern requested that the full Superior Court rehear the case. The petition was denied on June 8, and Southwestern subsequently asked the Supreme Court to hear its appeal. In granting Southwestern’s request, the Supreme Court rephrased the issue as:

Does the rule of capture apply to oil and gas produced from wells that were completed using hydraulic fracturing and preclude trespass liability for allegedly draining oil or gas from under nearby property, where the well is drilled solely on and beneath the driller’s own property and the hydraulic fracturing fluids are injected solely on or beneath the driller’s own property?

PIOGA believes the Court stated the question on appeal in a way that is factually favorable to industry’s position.

“PIOGA is pleased that our Supreme Court has decided to hear Southwestern Energy’s appeal of the two-judge Superior Court decision that refused to apply Pennsylvania precedent to resolve this dispute,” commented Kevin Moody, PIOGA General Counsel. “We look forward to participating in the appeal to help try to convince the Court that the Superior Court erred in putting Pennsylvania law at odds with most other states by relying upon dissenting positions in other states’ court decisions”

The association participated as an amicus during the Superior Court’s consideration of the case and will continue to do so as the case is before the Supreme Court.

For more background on the case, please refer to the April and July 2018 issues of The PIOGA Press.